Tobacco Documents Online

rom the Office of the General Counsel ® Tobacco Advertising and the First Amendment ,- J Americans die from causes attributed to secondhand smoke I'. g;:€~~ I- ~ sa )SU '.SL 1su wXI\ . -LSa. caw . ~ :+..~. rNa w•. Isca sr JK Not* x.mw a.oim `v IM I tobacco companies may use. Representative Henry Waxnan jo (D, Calit) has intrnduced legisiation that would substantially limit tobacco advertising by permitting only "tombstone" advertisements and by baaning tobacco sponsorship of sport- ing and cultiu2l events. Bans of this sort are already in el5ect in several countries. Canada, one of the mostrecent countries to act, instituted a tobacco advertising ban in January 1989 that is being implemented gradually. Due to that ban and other antisrnoking measures, tobacco sales in Canada de- dined at the fastest rate recorded in the last decade: 7% in 1989, and 10% in the first 4 months of 1990 (Wall Strret Journal. June 12,1990:B1). The American Medical Association, as part of its continuing effort to protect' the public health, has called for a complete ban on the advertisingof tobaa:o and tobacco products (Amer- ican Medical Association House of Delegates Resolution 96 [1989 Interim MeetingJ). As the following discussion demon- strates, this proposal is entirely consistent with the principlea of the Constitution of the United States. Tobacco advertisingis a form of commercial speech, which is defined as "expression related solely to the economic inter- ests of the speaker and its audience.'" Commercial speech has limited protection under the First Amendment.` Indeed, com- mercial speech was afforded no protection under the First Amendment whatsoeveruntil 1976.' In the 1980 Centrtzi Hudson case, the Supreme Court established a four-pxrt analysis in decidingwhether a law that restricts commercial speech is valid.' At the outeet, we mnst determine whether the expression is pro- tected by the First Amendment. For commeresl speech to come within that p:o.inion, it at least must eoncern lawful activity and not be miekading. Next, we must ask whether the asserted go+ssamen- talintea+eet is w6stiatial. If both iaqairies yield positive answees, we mast determine whetherthe:egulabmdinectty advances the go.eta- mentalinterestaeserted, andwhetherit is notmore e3denarvethanis neassary to serve that iate+est. . A straightforward application of this four part test shows that the Constitution would permit a.ban on the adverti,ging of tobacco products. 1. It is not at all clear that tobacco adVertising rnerits any protection under the First Amendment. Tb constitute pro- tected commercial speech, tobacco advertising must be lawful and not misleading. A strong argument can be made that advertising that portrays smoking as a healthy, athletic, and virile activity is inherently misleading.' Certainly, no adver- tisement by the tobacco industry discloses the parade of horrible diseases caused by the use of t'he product as intended. V$E DANGERS inherent in tobacco consumption have be- an increasingly apparent in recent years, as study after jwdypoints to the addictive and harmful properties of smok i* Cigarette smoking has been linked to such life-threaten- mg diseases as cancer, heart diseaae, and emphysema In 1989, the World Health Organization estimated that 2.5 nn1- &a people die each year of these and other tobacco-related &seases, which translates into approximately one death every 13 seconds Worldwide.` The Secretary of Health and Human gervices reports that in the United States alone, there are 39fJ 000 deaths each year that can be attributed to smoking.' 'lhis means over 40 deaths per hour and a cost to society of more thanS52 billion annually in health care expenditures and : bst-p:vductivity.°P'" Recent studies have also begun to pm- Pide information regarding the harm cigarettes cause to non- amokers. One such study estimated that as many as 50 000 each year (New York 1Bm,ea M.ay29,1990-JB51 Despite these honifying numbers, over 25% of adults in the United States aooke.lj°' Many critics point to the vigorous advertising and promo- tion activities undertaken by tobacco companies as a source of attraction to smoking. In 1988, tobacco companies spent over i1 billion on advertising (newspaper, magazine, outdoor, tran- .st; andd point of sale) and over $2 billion on promotion (promo- tional aIIowances, firee-sampie distribution, public entertain- ment, and otherY to bring the message to consumers that eigarette smokers are happy, attractive, glamorous, and dar- ing. Critics claim that these advertisements prey on the indi- ridsalS need for acceptance and excitement and are parCicn- larly inthnntiaT in the retr¢itment of children and teenagers to amoldng. A recent report by the Department of Health and Human Services estimates that approximately 47% of adults current- ly smoking started when they were less than 18 years old.'jtO ln addition, the Surgeon General estimates that more than 3000 teenagers become iegulai~ smokers every day and that, if this current rate of tobacco use continues, 5 million of these chddren will later die of tobacco-related diseases (Chicago 11"ibwee. June 1, 1990:14): Due to the influence of advertising on the demand for tobacco and the documented evidence of the harms of smok- mg. there have been repeated calls by legislators and others to ban tobacco advertising or to limit t'he type of advertising that

Moreover. the tobacco industry refuses to acknowledge the scientific evidence linking smoking with disease and death. For example, a leading tobacco company was recently cen- sured by the Federal''i7rade Commission for misstating the results of scientific studies and misleading the public regard- • ing the health risks of smoking (Chicago Tribune. June 21. 1990:sect 3:4). But the legality of a ban on tobacco advertisingg does not depend on a finding that these advertisements are inherently misleading. Even if tobacco advertisements were to be made completeiynondeceptive, Congress could lawfully ban them. 2. The second part of the Central Hudson test is whether there is a substantial governmental interest in the regulation at issue. There can be no doubt that the government has a substantial interest in reducing the incidence of disease and death that result from tobacco use in this country every year. The Supreme Court had'no difficulty" in concluding that the Puerto Rican governmentg interest in the health, safety, and welfare of its citizens, manifested by a restriction on the advertisement of casino gambling, was substantial.' It would be difficult to imagine a more compelling governmental inter- est than the reduction of tobacco's relentless assault on the health of Americans. 3. The third part of the Central Hudson test is that the regulation must directly advance the governmental interest asserted. Iaotherwords, it must be reasonable to believe that the advertisement of tobacco products tends to increase de- mand for them. The Supreme Court found such a belief to be reasonable in the advertising of both casino gambling10 and electricity.n It could not seriously be argued that the tobacco industty spends over $3 billion annually on advertising that does not serve to increase the demand for its products. 4. The fourth, and final, part of the Central Hudson test is thatthe regulationmustnot be more extensive than necessary to serve the governmental interest. In a recent case, the Supreme Court held that this test does not require that the government use the least restrictive means available; rather, the government need only employ means narrowly tailored to achieve its desired objective. ° For example, the Supreme Court upheld a Puerto Rican law that forbade the advertising of casino gambling aimed at the residents of Puerto Rico, but permitted~ such advertising to tourists:" The Court also up- held' a ban on comalercial' activities, in particular "Tupper- ware parties," in college dormitory rooms.' In both of these cases, the Court gave great deference to the political decision of the legislature inde+ermini*+g the best means of addressing the problem atissue, even though less restrictive means were available. Precisely the same judicial policy should apply to a ban of tobacco advertising. In fact, the Court cited the ineffective- ness of tobacco labelingrequirements in reducing the demand for tobacco when it upheld the Puerto Rican legislature's decision to completely ban, ratherthanregnlate, the advertis- 1594 JAMA. Seotemper 26. 1990-Vot 26A. No ~ 12 ing of casino gambling to its citizens.'Therefore. Catan, could determine that other. less restrictive. means ofredydw ' demand for tobacco would not succeed as well as a bu: advertising. For example, Congress could find thata~ advertising program. or more strenuous labeling ments, would not be as effective as an advertising ba4s reducing demand for tobacco. If so. the advertising ban" not be unlawful simply because these lesser restrictioas,* available. Moreover, Congress would not be precluded from enactioo ban on tobacco advertising because tobacco is a legal plodom Put another way, Congress need not outlaw a productbefoee= may outlaw the advertising of that product. Congress eertlil~ ly could ban the sale and use of tobacco altogether, butitned not do so. The Supreme Court has held that the powerto bln product includes the power to ban advertising of thatproduit `The greater power to completely ban casino gambling neoei. sardy included the lesser power to ban advertising of ca9n gambling. ... n° Assuming that the advertising of tobacco constitutes pw tected speech, a ban on advertising tobacco products aaaY fully meet First Amendment standards regarding the regob tion of commercial speech. Michael L. Ile. JD Laura A. Kroil American Medical Assodm 1. Regin C.'Ibbaceo Idlls one person every 13 seconds. Reutkn. Ma,r31.191 2. Smoki+rgand HeaLtk: A NatfonalStatsss Report. ZAd ed. Raekriik. Nt(» Dept d Health and Hnman Services. Public Health Service. oDja on 5moia( and Healtb:199o. US DHHS publication (CDC) 87-8396:1. 3. Centers for Dt3lnee Control. Cigarette adverastog-UNted Stsua.191 JAMA.1990063.12872-2875. 4. Cenlr+al fludsos Gas & Electric Corp o Aablic Serviee Commiuiore alle }ork. 447 US 3,i"T. 561(19801 5. The Fixat Amendment to the US Consrituuon reads in ps:ziner"- - "Congiess thall make no la.. ... abcidging tbe 4eedom afspeeeh. .~ 6. VFrgiwfa Pharmacy Board ~r Ynyinia Citiune Consumer Con*n+.•. . 74s(1976). , ' 7. Central Hudson Gas & Electric Corp o Pubdia Sersies Coeanf+s+oR als-V ~ York, 447 US566(1980). • B. Meyers W. The Image-Makers: Powerand Persuasion on Madisoa.toe.+e ~ New York. NY: Random House• 1984:3L 9. A»adas de Puerto Rfeo Aasociaua v Ibusism Coeapany ajPrurto Rioe.i3 ~ US 328 (19861. 10. Pbsada. dt Puerto Rico Aasociatea v Iburvm cornpany ol Puerib R;co. 4a US 344 (19®6). 1L CintralHudson Gas k Electric Corp n Public Semice Corn-i.eim1slSa` Yark. 447 US 569 (19801 12. Board oj1}ustees ojtAs State (/nive.aity of Nav York o Ibdd Foz.109901 3028 (19B9). 13. %aadasdePwrtoRicvAssoriatcsv7buriamCompanyojPuatoRi"43 US 343 (19861. 14. 'Congatad had convincing evidence that the Labeling Ad of 1965 lyd ea mat,rsiallyredaced tbe inddence of xaoke:" Capita! Be+oadoastiwY Co. MW~ ell. 333 FSupp 582, S85 (DDC 1971) ((three-judge conrt), sww+r.a.+tY 4W d wora, Capilal$madoasRng Co ro Ading Attcrnsy Getsrat.406 US 1GO0(19in ls, fbsadasd.PeurtoRieoAjsoeiatsvlburisn.CompanyolPr.er°R'°°'/3 Us 345 (19B6),